AMP Financial Planning Pty Ltd v CGU Insurance Limited (No 2) [2004] FCA 1397

FEDERAL COURT OF AUSTRALIA

AMP Financial Planning Pty Ltd v CGU Insurance Limited (No 2) [2004] FCA 1397

INSURANCE – liability insurance – insurer's reliance on terms of policy rejected – claims made on insured not paid but not subject of judgments – whether declaration as to indemnity should be made COSTS –Calderbank letter – offer to applicant to withdraw with each side bearing own costs – respondent succeeding but failing on some issues – whether applicant better off compared with accepting offer – whether costs should be awarded on solicitor-client basis – whether respondent's costs should be reduced due to failure on some issues

Federal Court of Australia Act 1976 (Cth) s 21

AMP Financial Planning Pty Ltd v CGU Insurance Limited [2004] FCA 1330 cited Post Office v Norwich Union Fire Insurance Society Ltd [1967] 1 QB 363 at 374 applied AMP Fire and General Insurance Co Ltd v Dixon [1982] VR 833 applied Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 applied Calderbank v Calderbank [1975] 3 All E R 333 cited AMP FINANCIAL PLANNING PTY LTD V CGU INSURANCE LIMITED V 465 of 2003 HEEREY J MELBOURNE 29 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 465 OF 2003

BETWEEN: AMP FINANCIAL PLANNING PTY LTD (ACN 051 208 327)

APPLICANT

AND: CGU INSURANCE LIMITED (ACN 004 478 371)

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 29 OCTOBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed;

2. The applicant pay 90 per cent of the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 465 OF 2003

BETWEEN: AMP FINANCIAL PLANNING PTY LTD (ACN 051 208 327)